Ets-Hokin Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1965

154 N.L.R.B. 839 (N.L.R.B. 1965)

ETS-HOKIN CORPORATION, ETC. 839
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon aplication
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue , Cleveland, Ohio, Telephone No. Main 1-4465.
Ets-Hokin Corporation and R. D. Neill , d/b/a Rose Construction
Ets-Hokin Corporation and Local Union No. 428 , International
Union of Operating Engineers , AFL-CIO
Local Union No . 769, International Brotherhood of Electrical
Workers, AFL-CIO (Ets-Hokin Corporation ) and R. D. Neill,
d/b/a Rose Construction
International Brotherhood of Electrical Workers, AFL -CIO (Ets-
Hokin Corporation ) and R. D. Neill, d/b/a Rose Construction
Local Union No . 769, International Brotherhood of Electrical
Workers, AFL-CIO (Ets-Hokin Corporation ) and Local Union
No. 428, International Union of Operating Engineers, AFL-
CIO
Local Union No. 769, International Brotherhood of Electrical
Workers, AFL-CIO and International Brotherhood of Electri-
cal Workers, AFL-CIO and R. D. Neill , d/b/a Rose Construc-
tion and Ets-Hokin Corporation , Party to the Contract. Cases
Nos. 28-CA-939, 928-CA-915, 928-CB-262, 28-CC-137, 928-0B-9263,
28-CC-138, 928-CB-264, 928-CC-139, and 28-CE-3. August 31,
1965
DECISION AND ORDER
On February 4, 1964, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in certain unfair labor practices alleged in
the complaint and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Respondents filed exceptions to the
Trial Examiner's Decision and briefs in support thereof. The
Respondents also filed supplemental briefs in support of their posi-
tions. The General 'Counsel filed an answering brief and a supple-
mental memorandum in support of the Trial Examiner's Decision.
The Respondents also requested oral argument. The request is denied
as the record, including the exceptions and briefs, adequately present
the issues and the positions of the parties.
154 NLRB No. 52.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has revised the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Decision,
the exceptions, and the briefs, and hereby adopts the Trial Ex-
aminer's findings, conclusions, and recommendations only to the
extent consistent with our Decision herein.
I. Section 8(e) : Ets-Hokin's contract with IBEW Local 769 con-
tains the following clause :
The Local Unions are part of the International Brotherhood
of Electrical Workers and any violation or annulment of work-
ing rules or agreements of any other Local Union of the IBEW,
or the subletting, assigning, or transfer of any work in connec-
tion with electrical work to any person, firm, or corporation not
recognizing the IBEW as the collective bargaining representa-
tive on any electrical work in the jurisdiction of this or any
other such Local Union by the Employer, will be sufficient cause
for the cancellation of this agreement, after the facts have been
determined by the International Office of the Union.
The Trial Examiner found that the subcontracting clause violated
the general proscription of Section 8(e) and was not protected by
the construction industry proviso to that section. The clause has
three separate aims, each of which we consider below: (1) to pre-
vent subcontracting of electrical work in the jurisdiction of the con-
tracting local except to a contractor having an agreement with the
IBEW; (2) to allow the contracting local to terminate its contract
if the employer violates the clause in its jurisdiction; and (3) to
allow IBEW locals to terminate their agreements if any local's
contract has been breached.
A. IBEW subcontracts: It is clear that the disputed clause
violates the general proscription of Section 8(e). However, not all
clauses that come within the proscriptions of Section 8(e) are pro-
hibited. The first proviso to Section 8(e), reading :
Provided, That nothing in this subsection (e) shall apply to an
agreement between a labor organization and an employer in the
construction industry relating to the contracting or subcontract-
ing of work to be done at the site of the construction, alteration,
painting, or repair of a building, structure, or other work:.. . .
grants a limited exemption to the construction industry.
The Trial Examiner found that the instant clause did not come
within the proviso because it did not expressly contain the statutory
language. But the proviso, while exempting agreements which
relate to construction work to be done on the jobsite, does not require
ETS-HOKIN CORPORATION, ETC. 841
a specific verbal formula.' The Board has held that a contract not.
clearly unlawful on its face would be interpreted to require no more
than what is allowed by law; it',is not necessary that a questioned
clause contain the precise language of the statute to be lawful.2 If
a clause is ambiguous, the Board in a Section 8(e) proceeding will
not presume unlawfulness, but will consider extrinsic evidence to-
determine whether the clause was intended to be administered in a
lawful or unlawful manner.'
At all times material to this case, Ets-Hokin had been engaged in
electrical contracting in the building and construction industry. The,
contract itself is one which was entered into between the IBEW and
the National Electrical Contractors of America. The scope of the
agreement covers work normally done at the construction site, such
as pole line construction, steel and metal construction, highway
lighting systems, and electrical underground construction. Through-
out the agreement the term "construction" appears frequently. It is
clear that the contract provisions refer to construction work. It was
also stipulated at the hearing that the contracting clauses are found
only in contracts with the IBEW applicable to the construction
industry and that Ets-Hokin was performing the type of work found
in the contract. Upon the basis of the foregoing, we find that the
subcontracting clause applies, and was intended to apply, only to
on-site construction work.
B. Termination: The subcontracting clause which we have found
to be lawful under the construction industry proviso to Section 8(e)
was repeated in the bargaining contracts between the IBEW, its
local, and contractors throughout the United States. By its terms,
if a contractor violated provisions of the clause in a collective-
bargaining contract with one local of the IBEW, he was subject to
having his contracts with other 1BEW locals canceled. The effect
in practical terms in thus described by Respondent IBEW in a sup-
plemental memorandum submitted to the Board (p. 6) :
Because the so-called "annulment" clause contained in the
IBEW's contract with Ets-Hokin was repeated in the union's
agreements with other contractors throughout the nation, the
'Paragon Products Corporation, 134 NLRB 662 ; Stackhouse Oldsmobile, Inc., 140
NLRB 1239 ; N.L.R.B. v. News Syndicate Co, Inc., at al., 365 U.S. 695 ; Milk Drivers
and Dairy Employees Union, Local No. 546, Teamsters (Minnesota Milk), 133 NLRB 1340;
and Milk Drivers' Union , Local 753, Teamsters ( Pure Milk Association ), 141 NLRB
1237.
2 Paragon Products , supra, footnote 1 ; Stackhouse Oldsmobile, supra, footnote 1. The
Board relied on N.L R.B. v. News Syndicate , supra, where the Supreme Court approved
a lower court's holding that "in the absence of provisions calling explicitly for illegal
conduct, the contract cannot be illegal because it falls affirmatively to disclaim all Illegal
objects."
8 Ohio Valley Carpenters District Council , United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, et al. ( Cardinal Industries, Inc.), 136 NLRB 977, 986,
and Pure Milk Association, supra.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cancellation of the Ets-Hokin agreement would have immedi-
ately made that company an ineligible business associate in
the eyes of these other contractors. Thus, whether or not the
union continued to refer workmen to Ets-Hokin, the mere fact
that the latter had no agreement with IBEW would have placed
Ets-Hokin in a position where other contractors wishing to com-
ply with their own IBEW agreements would not have made con-
tracts with Ets-Hokin. Under such circumstances, there was no
motivation for the union to take the strike action the General
Counsel considers inevitable.
In other words, by canceling its collective-bargaining contract with
Ets-Hokin because of violation of the subcontracting clause, Local
769 could have practically forced Ets-Hokin out of business in the
whole United States. The threat of contract cancellation was there-
fore a powerful private economic sanction to insure compliance with
the subcontracting clause.
Both the Board and the courts have said that although a contract
within the construction industry proviso to Section 8( e) is exempt
from the operation of that section, it may be enforced only through
lawsuits and not by threats, coercion, or restraint proscribed by
Section 8(b) (4) (B).4
The term "coercion" as used means "non-judicial acts of a com-
pelling or restraining nature, applied by way of concerted self-help
consisting of a strike, picketing or other economic retaliation or
pressure in a background of a labor dispute." [Emphasis supplied.] 5
Self-help is not judicial action, even if a court or its equivalent
might grant the same remedy for breach of contract that one of the
parties proposes to achieve unilaterally. Neither is the contract
principle controlling, that is, one party to a contract breaches a
material provision thereof, the other may elect to rescind its We
are not administering the law of private contracts. ^ Congress has,
as we read the legislative history, outlawed every form of private
contract rendered permissible by the building construction proviso to
t Muskegon Bricklayers Union #5, Bricklayers , Masons and Plasterers International
Union of America (AFL-CIO) ( Greater Muskegon General Contractors Association), 152
NLRB 360; Local Union No. 48 of Sheet Metal Workers International Association v.
Hardy Corporation, 332 F. 2d 682 ( C.A. 6) ; Orange Belt District Council of Painters
No. 48, AFL-CIO ( Calhoun Drywall Co.) v. N.L.R.B., 328 F. 2d 534 (C.A.D.C.).
a Sheet Metal Workers v. Hardy , supra, at 686.
e "We realize that this conclusion may leave the union with a valid contractual pro-
vision and with no means of enforcing it other than in a civil suit. We also realize the
difficulty the building crafts have with the secondary boycott provision of the Labor-
Management Relations Act, but this court is not the forum in which to seek relief from
what the union characterizes as `the shackles ' of this statute ." Local No. 5, United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL -CIO (Arthur Venneri Co .) v. N.L.R.B., 321 F. 2d 366,
370 (C.A.D.C.).
ETS-HOKIN CORPORATION, ETC. 843
Section 8(e)? Finally, we are not overruling the Amalgamated
Lithographers (Miami Post) case,8 as suggested by Member Fanning
in his dissent. That case did not involve the construction industry
proviso to Section 8(e), but a lawful, primary "struck work" clause
together with a "right to terminate" clause giving the union the
right to terminate the contract in the event that the employer re-
quested an employee to handle "struck work." The Board said that
.since the "struck work" clause was lawful, the "right to terminate"
clause intended to give the union a remedy for its breach was also
lawful. There is no legislative history which shows a congressional
intent to limit to lawsuits the enforcement of a clause outside the
reach of Section 8 (e) without reference to its proviso, as in the
'Amalgamated Lithographers case. But there is such an intention
manifested as to contracts which would be unlawful under Section
8 (e) but for the construction industry proviso. By an exception,
Congress has permitted in the construction industry certain contracts
which would otherwise be unlawful under Section 8(e). But the
exception is not unqualified. Congress has indicated clearly that,
although lawful, these proviso contracts are not to be enforced by
self-help. That is the point of difference between the Amalgamated
Lithographers (Miami Post) case and the present one.9
Accordingly, we find that as the annulment provision of the termi-
nation clause involves a form of economic pressure proscribed by
Section 8(b) (4) (B), it exceeds the limited exemption of the con-
struction industry proviso to Section 8 (e) and is therefore
unlawful.10
C. Sympathetic action: As the local involved does not have the
right to cancel its agreement to achieve an objective condemned by
Section 8(b) (4) (B), a fortiori, another local not directly involved
in the dispute would not have the right to terminate its contract with
Ets-Hokin for a like objective. Accordingly, we find this feature
of the clause unlawful under Section 8(e).
7 "Thus, although employers and unions who are under [ the construction industry]
exemption to [Section 8(e) ] may lawfully enter into such agreements , and may resort to
the courts for their enforcement under applicable principles of contract law, no coercion
or restraint-economic or otherwise-may be used by any party to such agreement, even
if entered into voluntarily by both parties , to compel the other party to live up to the
contract or to refrain from breaching it." Memorandum by Senator Goldwater analyz-
ing the new law . II Leg. Hist . Labor-Management Reporting and Disclosure Act of
1959 ( U.S. Govt. Print . Office 1959 ), at 1858.
$Amalgamated Lithographers of America and Local 78, etc. (Miami Post Company),
130 NLRB 968 , 977, enfd. as modified 301 F. 2d 20 (C.A. 5).
O Indeed, in a hot cargo or secondary boycott context , albeit not within the construc-
tion industry proviso to Section 8 ( e), the Ninth Circuit stated in a companion Amal-
gamated Lithographers case that the effect of a "termination " clause is to agree to a
strike as "an ultimate sanction ." N.L.R.B. v. Amalgamated Lithographers of America
(Ind.), 309 F. 2d 31, 39-42, enfg. 130 NLRB 985 , cert. denied 372 U S. 943 . See Lesnick,
Job Security and Secondary Boycotts, 113 U. Pa. L. Rev . 1000, 1013, footnote 55 (1965).
10 Muskegon Bricklayers Union # 5, supra.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Liability of Ets-Hokin: The Trial Examiner predicted the
liability of Ets-Hokin on his mistaken belief that the charges and
complaint in Case No. 28-CE-3 named Ets-Hokin as a respondent.
In view of the fact that neither the charge nor the complaint alleged
a violation of Section 8(e) by Ets-Hokin, we reject the Trial
Examiner's findings against it.
E. The constitutionality of this section: The contention that Sec-
tion 8(e) is unconstitutional has been rejected by the Board. In the
absence of a binding court order to the contrary, the Board must
assume the constitutionality of the Act which it is required to,
administer."
F. Davis-Bacon defense : This point was originally raised by the
Respondent Unions as grounds for the cancellation with Ets-Hokin.
Under the Davis-Bacon Act, the general contractor is responsible for
his subcontractor's meeting the Davis-Bacon rates set in the contract.
The Unions argue in substance that Ets-Hokin was subject to a
Government wage-standards subcontracting clause and that by sub-
contracting to Rose-Phoenix, which did not pay Davis-Bacon wages,"
it breached its agreement. However, the facts do not support the
Unions' contention that this was the sole, or even the main, reason
for canceling the contract with Ets-Hokin, for the record establishes
that the IBEW insisted that Rose-Phoenix be removed even after
Ets-Hokin had agreed to pay the difference between the rates Rose-
Phoenix was paying and the alleged Davis-Bacon rates.
H. Section 8(b) (4) (A) : This section prohibits the use of pro-
scribed means for an object of "forcing or requiring an employer . .
to enter into any agreement which is prohibited by subsection (e)
of this section." In Northeastern Indiana Building and Construction
Trades Council (Centlivre Village Apartments)13 the Board reex-
amined its approach to this section and decided to adopt the view of
various courts that the proviso to Section 8(e) is incorporated by
reference into Section 8(b) (4) (A) ; hence an attempt by means con-
demned by Section 8 (b) (4) to obtain such a clause which is lawful
under the construction industry proviso falls outside the scope of
Section 8(b) (4) (A). We have reviewed the Trial Examiner's find-
ing of a Section 8 (b) (4) (A) violation in light of our decision in
Centlivre. Having found the termination and sympathetic action
features of the clause unlawful under Section 8 (e), notwithstanding
the proviso, we do find, as did the Trial Examiner, that Respondents
IBEW and Local 769 violated Section 8(b) (4) (ii) (A) in coercing
n Amalgamated Lithographers of America and Local 78, etc . ( Miami Post Company),
140 NLRB 968, footnote 3.
12 A case on this point is now pending before the Department of Labor.
13 148 NLRB 854.
ETS-HOKIN CORPORATION, ETC. 845
Ets-Hokin to remove Rose-Phoenix from the Glen Canyon project,
by threatening to enforce the termination clause in Local 640's 14
,contract.l5
III. Section 8(b) (4) (B) : In Centlivre Village Apartments, supra,
the Board held that coercion by a union to interrupt business relations
between a neutral general contractor and an identified subcontractor
came within the prohibition of Section 8(b) (4) (B). Here the Trial
Examiner found that the Union, by threatening to cancel its contract
with Ets-Hokin, forced Ets-Hokin to cancel its contract with Rose-
Phoenix and thus violated Section 8(b) (4) (ii) (B) of the Act.
We agree.
The Trial Examiner rested his finding that Local 769 shared equal
responsibility with the International for the coercion on the ground
tthat joint activity for a joint objective creates joint responsibility.
Local 769 argues that coercion must be within the power of the
person making the threat, and asserts that as it alone had no power
to terminate the contract, a fact known by the parties, it may not be
held responsible. It also argues that the Board has recognized that
labor organizations are to be treated as legal entities and the mere
fact that two labor organizations are affiliated is not sufficient with-
out more to establish the responsibility of the local for the action of
its parent organization.16
Local 769 is chartered by the International and is a, successor to
Local 640, also chartered by the International. Although the terms
of employment are determined and negotiated by each local union,
agreements must be submitted to the International for approval. In
addition, agreements between the local and an employer in the con-
struction • industry must contain a clause declaring that the local is
part of the IBEW and that an alleged violation of the subcontract-
ing clause would be examined by the International to see if it is
factually supported. Grievances are handled by the local, but the
International participates in the final stages of the grievance machin-
ery. The protest that led to the International's interest in this case
was made by Local 769, and officers of the local participated in the
various meetings between Ets-Hokin and the International. Thus,
the local and the International shared a common objective of obtain-
ing work for IBEW members who belonged to the local, and the
local allowed the International to act for it so that strength would
14 The original contract was between Ets-Hokin and Local 640 of the IBEW, the
predecessor of Local 769.
15Los Angeles Mailers Union No. 9 I.T.U. ( Hillbro Newspaper Printing Company, etc.),
135 NLRB 1132, 1136, enfd . 311 F. 2d 121 (C A.D.C.) ; and District No. 9, Internatwnal
Association of Machinists , AFL-CIO ( Greater St . Louis Automotive Trimmers and
Upholsterers Association , Inc.), 134 NLRB 1354, 1359-1366, enfd . 315 F 2d 33 (C A D C )
16 International Brotherhood of Electrical Workers, and Local 5, AFL-CIO (Franklin
-Electric Construction Company ), 121 NLRB 143.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be added to its own position. We find that Local 769 and the Inter--
national were acting in concert and both Unions are therefore jointly
responsible for the unlawful coercion prohibited by Section 8 (b) (4)
(ii) (A_) and (B).
IV. Discriminatory discharge : The Trial Examiner found that
the Respondent Unions and Ets-Hokin were responsible for the
termination o the Rose-Phoenix employees, and that the termina-
tions were violations of Section 8(a) (1) and (3) by Ets-Hokin and
Sections 8(b) (1) (A) and (2) by the Unions.
The "no subcontracting" contract provision has the following
aspects : a prohibition against subcontracting on a building construc-
tion site, and an annulment clause. The first of these we have found
to be lawful under the construction industry proviso to Section
8(e) ; the second we have found to be unlawful. These two aspects
are, however, severable. The Unions had the right to insist, albeit
not by proscribed means, that the Employer subcontract work only
to IBEW subcontractors as required by the lawful part of the extant
collective-bargaining contract. Accordingly, in terminating its con-
tract with Rose-Phoenix because of the lawful requirement of its
collective-bargaining contract with Respondent Union, Ets-Hokin
did not discriminate against employees in violation of Section 8(a)
(3) and (1) ; and, in insisting that Ets-Hokin adhere to the lawful
contract terms, Respondent Unions did not cause Ets-Hokin to un-
lawfully discriminate in violation of Section 8(b) (2) and (1) (A)."'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondents, International Brotherhood of Electrical Workers,
AFL-CIO, and its Local Union No. 769, their officers, agents, and
representatives, shall take the following action :
1. Cease and desist from :
(a) Entering into, maintaining, giving effect to, or enforcing the
termination and sympathetic aspects of the subcontracting clause
found in their collective-bargaining agreements, to the extent found
unlawful herein.
(b) Threatening, coercing, or restraining Ets-Hokin or any other
person engaged in an industry affecting commerce to enter into an
agreement prohibited by Section 8(e) of the Act, or to cease doing
business with Rose-Phoenix or any other person.
17 International Brotherhood of Electrical Workers, Local 11, AFL-CIO (T. A. Thorn-
burgh Co. ), 153 NLRB 1173
ETS-HOKIN CORPORATION, ETC. 847
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Post at their business offices and meeting halls in Phoenix,
copies of the attached notice marked "Appendix." is Copies of said
notice, to be furnished by the Regional Director for Region 28, shall,
after being duly signed by the Union's representatives, be posted by
the Unions immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Unions to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Sign and mail to the Regional Director for Region 28 sufficient
copies of said notice, to be furnished by him, for posting by Ets-Hokin
Corporation, if willing.
(c) Notify the Regional Director for Region 28, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges that the Respondent, Ets-Hokin
Corporation, violated the Act.
MEMBER FANNING, concurring in part and dissenting in part :
I join with my colleagues in dismissing the alleged violations of
Section 8(a) (3) and 8(b) (2),19 and in finding that the subcontract-
ing clause is protected by the construction industry proviso to Section
8(e). I cannot agree, however, that the termination clause in sup-
port thereof falls outside the protection of the proviso, or that the
threat to invoke the contractual right to terminate the collective-
bargaining agreement constituted economic pressure prohibited by
Section 8(b) (4) (B).
The majority holds that the right of termination is a form of
economic pressure or self-help available to force compliance with the
"protected" subcontracting clause and that, therefore, the termina-
tion clause exceeds the bounds of the construction industry proviso.
In so holding, the majority places principal reliance on its conclu-
sion that the termination of the collective-bargaining agreement
19 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words
"a Decree of the United States Court of Appeals, Enforcing an Order".
19 My agreement in this respect is based solely upon my conclusion that the entire
"annulment" clause is lawful, for the reasons expressed infra. Therefore, I hold that
the removal of Rose-Phoenix and its employees , in accordance with that clause , does not
iolate Section 8(a) (3) or 8(b) (2) of the Act. Local 357, International Brotherhood of
Teamsters , etc. (Los Angeles -Seattle Motor Express ) v. N.L.R.B., 365 U.S. 667. Inter-
national Brotherhood of Electrical Workers, Local 11, AFL-CIO (T.A. Thornburgh Co.),
153 NLRB 1173.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Respondents would work severe economic hardship on
Respondent Ets-Hokin because other contractors who wish to live
up to their no-subcontracting agreements with IBEW would not
subcontract work to Ets-Hokin, and upon the Ninth Circuit's con-
clusion in the Amalgamated Lithographers case 2p that the termina-
tion clause there involved was, in the circumstances of that case, the
equivalent of an agreement that the contracting union could employ
a strike as "an ultimate sanction" in enforcing its contract.
For the reasons stated in my -dissents in the Greater Muskegon
and Carvel cases 721 I disagree with the majority's conclusion that the
contractual reservation of the right to take economic action to en-
force a lawful no-subcontracting clause is itself violative of Section
8(e) of the Act. It seems anomalous to find, as does the majority,
that the incorporation of the so-called self-help provision in the
clause at issue herein operates lawfully to prohibit the employer
from subcontracting to nonunion subcontractors, even though the
self-help provision itself violates Section 8(e),22
That the majority's construction of the clause and of 8(e) is unwar-
ranted seems clear upon a reading of the entire decision of the Ninth
Circuit in the Amalgamated Lithographers case. In that decision, the
court, though construing a termination clause in conjunction with a
lawful "chain shop" clause as an agreement by the primary employer
"to a strike as an ultimate sanction" if it breached the "chain shop"
clause, stated : ,
But the fact that a strike or other coercive activity of the kind
described in Section 8(b) (4) is for an objective there'made un-
lawful does not of itself render unlawful a contract whereby the
employer agrees to voluntarily act in such a manner as would
20 N L R .B. v. Amalgamated Lithographers of America ( Ind.) and Local No. 17
(Lithographers and Printers National Assn ), 309 F 2d 31.
21 Muskegon Bricklayers Union #5 ( Greater Muskegon General Contractors Associa-
tion ), 152 NLRB 360, Local 217, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the U.S. and Canada, AFL-CIO (The Carvel Co.),
152 NLRB 1672.
22 Were I to agree with the majority that the contractual right of termination con-
stitutes "economic pressure " and places the clause outside the protection of the proviso
to 8(e), I would, perforce, find the entire clause invalid. The clause in issue operates
as a restriction on the employer's right to subcontract solely by virtue of the fact that
the IBEW has the right to cancel its entire agreement if the employer subcontracts
work to subcontractors who do not have agreements with appropriate IBEW locals.
The entire clause constitutes an implied agreement not to subcontract to such subcon-
tractors . The two parts of the clause are not severable . The majority is rewriting the
parties' contract to the extent it finds that a restriction on subcontracting survives its
striking down of the termination provision . Surely, if it is true as the majority states,
and as I agree , that our function,is not to administer the law of private contracts, it is
all the more true that our function does not include rewriting contracts of the parties.
Employing Lithographers of Greater Miami -Florida ( Miami Post Co.) v. N.L.R.B., 301
F 2d, 20, 28, enfg . 130 NLRB 968 , as modified in pertinent part.
ETS-HOKIN CORPORATION, ETC. 849
accomplish such an objective. This was settled in Local 1976,
United Brotherhood of Carpenters and Joiners of America v.
N.L.R.B., 357 U.S. 93.
It follows that if the chain shop clause is unlawful it must
be because some provision of the Act other than Section
8(b) (4) (A) and (B) make it so.
Though the court nevertheless affirmed the Board's conclusion that
the "termination" clause violated 8 (e), it did so because that clause
could be invoked not only for the employer's breach of the lawful
"chain shop" clause but also if the employer requested its employees
to perform "'any' work received from or destined for any employer
involved in a strike or lockout ... whether such work was `custom-
ary' or `farmed out' work." Thus, the basis for the finding of
illegality was that the termination clause itself constituted an im-
plied agreement requiring the employer to cease doing business with
certain other employers in violation of Section 8(e). Though the
instant termination clause may be, indeed must be, construed as an
implied agreement that Ets-Hokin will not subcontract to "non-
union" subcontractors, such an agreement is permissible in the build-
ing and construction industry.
In view of the foregoing, I should think that this case is governed
by the rule established by the Board in Amalgamated Lithographers
of America (Miami Post Company), 130 NLRB 968, 977. In dealing
with a similar termination clause there, the Board stated as follows :
As we have found that the "struck work" clause is lawful, the
"right to terminate" clause intended to give the Union a remedy
for the breach of the former is equally lawful. However, the
"refusal to handle" clause is unlawful because it is intended to
implement not only the lawful "chain shop" clause but also the
unlawful "trade shop" clause.
Unless the majority, despite its disclaimer, is now overruling that
doctrine, sub silentio, I fail to see why the same test, which would
require a finding that the termination clause herein is lawful, is not
applied in the instant case. The clear import of the Board's holding,
quoted above, is that a termination clause is lawful whenever the
clause which it supports is lawful, and it is wholly immaterial whether
the latter clause is lawful because it is primary in nature or because it
falls within the construction industry proviso and is thus excepted
from the prohibition of Section 8(e).
Moreover, the majority stretches the type of coercion prohibited
under Section 8(b) (4) beyond the limits intended by the Congress
and interpreted judicially. To label the right of termination a form
206-446-66-vol. 154-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of unlawful economic pressure is to beg the issue, rather than to
answer it. The issue which must be resolved is whether the con-
tractual right to termination or rescission is a prohibited form of
coercion under Section 8(b) (4). In Sheet Metal Workers v. Hardy
Corporation, 332 F. 2d 682 (C.A. 5), the court dealt with and re-
jected the contention that judicial enforcement of a subcontracting
clause, which was protected by the construction industry proviso to
Section 8(e), amounted to coercion as that term is used in the Act.
The court stated, inter alias
We believe that the Congress used "coerce" in the section under
consideration as a word of art, and that it means no more than
non-judicial acts of a compelling or restraining nature, applied
by way of concerted self help consisting of a strike, picketing or
other economic retaliation or pressure in a background of a labor
dispute.23
The court buttressed its conclusion with an examination of portions
of the legislative history of the 1959 amendments to the Act. Those
references, and particularly the quoted language from the Supreme
Court's Sand Door 24 decision, are equally applicable in the instant
context.
Thus, the controlling distinction is that between economic ac-
tion, such as strikes, picketing, and other related conduct, on the
one hand, and resort to recognized legal or judicial remedies for
breach of contract on'the other.25 Clearly, the IBEW lawfully could
have filed suit for damages or specific performance for the breach
of its agreement and, if the latter were ordered, obtained precisely
the same result as it did herein. But another, long-accepted remedy
is available to a party to a contract when the other party commits a
material breach of that contract. That remedy is the right to re-
scind the contract. As stated in Corpus Juris Secwndum, "On a
material breach of the contract the injured party may elect to rescind
the contract or to stand on it." 26 Certainly the articulation within
the contract of this lawful right of election of remedies should not
23 332 F. 2d at 686.
24 Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F L , et at.
(Sand Door and Plywood Co ) v. N.L.R.B., 357 U.S. 93, 108.
25 The references to the legislative history cited by the court in Hardy, supra, prove
convincingly that the "other economic retaliation or pressure" mentioned by the court is
that which is akin to the "strike" or "picketing" referred to immediately before the
quoted phrase in the court's opinion. As noted above, the majority apparently accepts
IBEW's statement that the economic pressures involved herein are not those flowing
from a refusal of IBEW members to work without a contract, but are those resulting
from the refusal of other contractors who have no-subcontracting agreements with the
IBEW to give work to Eta -Hokin in such circumstances . Therefore , the emphasis placed
upon the quoted phrase by the majority in support of its position would appear to be
mistaken.
2117A CJ.S. Contracts § 422(1) at 521 (1963). See also Williston on Contracts
$$ 683, 893A (3d ed. 1937).
ETS-HOKIN CORPORATION, ETC. 851
have the anomalous effect of rendering unlawful the exercise of that
right, particularly where there is not the slightest evidence that the
Congress, having granted specific contractual rights to employers
and unions in the construction industry, then intended to deprive
the parties to such agreements of the well-established remedies for
breach of those very rights. I would find that the election of this
remedy, like that of seeking judicial enforcement, is a lawful form
of action and not a prohibited act of coercion under Section 8(b) (4).
Finally, the majority's conclusion cannot be supported on the
theory that termination of the contract will be followed by a strike
or picketing; a "no contract-no work" theory. The record herein
will not sustain a finding that the termination threat included a
threat to withdraw men or to picket Ets-Hokin. Indeed, the Trial
Examiner was quite careful to refrain from making any such find-
ing.27 And, while these events could occur or could be thought likely
to occur, such supposition will not satisfy the General Counsel's
burden of proving they did occur or were actually threatened.
For the foregoing reasons, I would hold the termination clause
in the IBEW-Ets-Hokin contracts and the Respondents Unions'
threats to invoke that clause lawful.
MEMBER ZAGORIA took no part in the consideration of the above
Decision and Order.
27 Trial Examiner's Decision , footnote 9.
APPENDIX
NOTICE TO ALL EMPLOYERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE, WILL NOT enter into, maintain, give effect to, or enforce
the termination and sympathetic action aspects of the subcon-
tracting clause found in our collective-bargaining agreement to
the extent that such clause constitutes a contract or agreement,
express or implied, with Ets-Hokin Corporation, or any other
employer, whereby such employer ceases or refrains from or agrees
to cease or refrain from handling, using, selling, transporting, or
otherwise dealing in the products of any other employer, or to
cease doing business with any other person.
WE WILL NOT threaten, coerce, or restrain Ets-Hokin Corpora-
tion or any other person engaged in an industry affecting com-
merce, as defined in the Act, where an object thereof is forcing
or requiring Ets-Hokin Corporation or any other employer
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in an industry affecting commerce to enter into an
agreement prohibited by Section 8(e) of the Act, or to cease
doing business with Rose-Phoenix or any other person.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
LOCAL UNION No. 769, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Resident
Office, 230 North First Avenue, Phoenix, Arizona, Telephone No.
261-3717, if they have any question concerning this notice or com-
pliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The General Counsel of the National Labor Relations Board consolidated nine
cases for hearing in Phoenix , Arizona, in a complaint issued August 16, 1963.1
' In Case No 28-CA-939, a charge was filed by R. D Neill for Rose Construction Com-
pany, Phoenix Division, on April 17, 1963, alleging that Ets-Hokin Corporation violated
Section 8(a) (3) and (1) of the Act.
In Case No. 28-CB-262, Scott Neill, on behalf of Rose Construction Company, Phoenix
Division, filed a charge on April 22, 1963, against Local Union No 769, International
Brotherhood of Electrical Workers, AFL-CIO, alleging violations of Section 8(b) (1) (A)
and (2 ) of the Act.
In Case No. 28-CB-263, Scott Neill filed a charge on behalf of Rose Construction
Company, Phoenix Division, on April 22, 1963, against International Brotherhood of
Electrical Workers, AFL-CIO, charging violations of Section 8(b) (1) (A) and (2) of
the Act.
In Case No. 28-CC-137, a charge was filed on April 22, 1963, by Scott Neill on behalf
of Rose Construction Company, Phoenix Division, and amended on July 30, 1963, charg-
Ing Local Union No. 769, International Brotherhood of Electrical Workers, AFL-CIO,
with violations of Section 8(b) (4) (ii) (A) and (B).
In Case No. 28-CC-138, a charge was filed on April 22, 1963 by Scott Neill on behalf
of Rose Construction Company, Phoenix Division, against International Brotherhood of
Electrical Workers, AFL-CIO, and amended on July 30, 1963, alleging violations of
Section 8 ( b) (4) (ii ) (A) and (B).
In Case No. 28-CA-945, a charge was filed on April 25, 1963, by the business repre-
sentative of Local Union No. 428, International Union of Operating Engineers, charging
Ets-Hokin Corporation with violations of Section 8(a) (1) and (3) of the Act.
In Case No. 28-CB-264, Local 428, International Union of Operating Engineers, AFL-
CIO, filed a charge on April 25, 1963, against Local Union No 769, International
Brotherhood of Electrical Workers, AFL-CIO, alleging violations of Section 8(b) (1) (A)
and (2).
In Case No. 28-CC-139, Local Union No. 428, International Union of Operating Engi-
eers, APL-CIO, filed a charge on April 25, 1963, against Local Union No. 769, Interna-
ETS-HOKIN CORPORATION, ETC. 853
Respondents IBEW International and IBEW Local 769 by their answers in general
substance deny the charging allegations of the complaint , with respect to alleged vio-
lations of Section 8(b)(1)(A ), 8(b)(2), 8 (b)(4)(ii )(A) and ( B), and 8(e) of
the National Labor Relations Act, as amended, herein called the Act. Respondent
Ets-Hokin in addition to a general denial of violations of Section 8(a) (1), 8 ( a) (3),
and 8 ( e) in its answer sets forth certain affirmative defenses to justify its action in
terminating Rose Construction Company, Phoenix Division, as a subcontractor from
the Glen Canyon project in Arizona, which is the construction project involved in
this case.
The origin and nature of the disputes involved will be indicated by the statement
of facts below.
Briefs from the General Counsel, Respondent Ets-Hokin , Respondent International
Brotherhood of Electrical Workers, AFL-CIO, and Respondent Local 769, Inter-
national Brotherhood of Electrical Workers, have been received and considered.
Upon the entire record and consideration of the briefs submitted, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Ets-Hokin Corporation,2 with its principal place of business in San Francisco,
California, is engaged as a general and electrical contractor and does business in vari-
ous States of the Union. As of April 1, 1963, it had in the process of construction
projects exceeding $50 million in value. It annually performs services outside the
State of California valued in excess of $50,000. Rose Construction Company,
Phoenix Division (herein called Rose-Phoenix), was a subcontractor on the project
known as the Glen Canyon project located in Arizona. Rose-Phoenix was a joint
venture, composed of Russell Neill and George and Helen Sanford. Ets-Hokin, the
prime contractor, had a contract from the United States Government in an amount
approximating $13'/2 million for the construction of a powerline and related facilities.
Rose-Phoenix, the subcontractor, was to perform work primarily concerned with the
erection of steel transmission towers and a power station. The amount of this sub-
contract was $1,500,000. Because Russell Neill was the sole owner of Rose Con-
struction in Albuquerque and was a joint venturer in Rose Construction, Phoenix
Division , the record frequently refers to Rose or Rose Construction as designating
Rose Construction, Phoenix Division.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, AFL-CIO; Local Union No.
769, International Brotherhood of Electrical Workers, AFL-CIO; and Local Union
No. 428, International Union of Operating Engineers , AFL-CIO , are labor organi-
zations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The events
Prior to a recital of the events in greater detail the facts which are largely undis-
puted will be summarized.
For many years, Ets-Hokin, the general contractor, had contracts throughout the
Nation with various locals of the IBEW containing an "annulment" clause substan-
tially the same as the typical clause, set forth below. The clauses that were contained
in contracts between Ets-Hokin and various IBEW locals at the time of the hearing
are set forth in Appendix A.
Ets-Hokin had no previous contractual relationship with IBEW Local 769, which
is headquartered in Phoenix, Arizona. This IBEW local claimed geographical juris-
diction of territory including that which encompassed the Glen Canyon project in
Arizona.
tional Brotherhood of Electrical Workers, AFL-CIO, alleging violations of Section
8(b) (4) (11) (B).
In Case No. 28-CE-3, R. D. Neill on behalf of Rose Construction Company, Phoenix
Division, filed a charge alleging violations by Ets-Iiokin Corporation of Section 8(e)
of the Act,
2 Subsequent to the events here involved, the Company changed its name from Ets-
Hokin & Galvan , Inc., to Ets -Hokin Corporation , and the name in this Decision has been
changed accordingly.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 1962, the superintendent of the Glen Canyon project, Gerald
McCallister, without knowledge of the "annulment" clauses in the various IBEW
local contracts with Ets-Hokin, entered into a contractual relationship with Rose-
Phoenix, whereby Rose-Phoenix was to construct steel transmission towers and
other steel construction. The type of work performed by the employees of Rose-
Phoenix was a type of employment that the IBEW claimed on behalf of its members.
McCallister was on notice that there might be a problem with respect to the juris-
dictional claims of the Operating Engineers and the IBEW with respect to the work
done by Rose-Phoenix.
Rose-Phoenix employees came on the project in January and shortly after Rose-
Phoenix executed a contract with the Operating Engineers Local 424, recognizing it
as the exclusive bargaining agent and the sole source of personnel. This precipitated
many representations from Local 769 IBEW officials and IBEW International officials
to Ets-Hokin, advising that it was in violation of the agreements spelled out in the
annulment clause relating to subcontracting. Respondent Unions insisted that Rose-
Phoenix be removed from the job and that IBEW personnel be employed to perform
the work that the Operating Engineers' personnel had been doing, and if not the
IBEW contracts Ets-Hokin had with IBEW locals throughout the Nation would be
canceled. Ets-Hokin in an effort to avoid having to breach its contractual relation-
ship with Rose-Phoenix offered to pay to Rose-Phoenix the difference in wage scale
occasioned by using IBEW personnel. Russell Neill, on behalf of Rose-Phoenix,
agreed to this. Nonetheless, the Respondent Unions insisted that Rose-Phoenix was
not acceptable to them and that it be removed from the Glen Canyon project.
Because of this Ets-Hokin and Rose-Phoenix made a financial settlement and Rose-
Phoenix and its approximately 56 employees left the Glen Canyon project in early
April 1963. Shortly after, Ets-Hokin and IBEW Local 769 entered into a similar
labor agreement in effect between Ets-Hokin and the other IBEW locals.
A more detailed statement of the record follows. On October 31, 1962, Ets-
Hokin entered into five separate contracts with Rose-Phoenix for construction to be
performed in Arizona in connection with the construction of a transmission line and
a power plant.3 Russell Neill deleted from each of the five contracts clause 17 which
would have bound him to comply with any labor agreement executed by Ets-Hokin.4
Ets-Hokin Job Superintendent McCallister testified that Neill struck out this pro-
vision because ". . . he wanted to use whatever people he desired on this particular
work and that in his opinion that another paragraph in there precluded this paragraph
anyway, something to that effect." At the time of the execution of these contracts,
Sanford, the other joint venturer with Neill, suggested there might be a possible prob-
lem between the IBEW and the Operating Engineers and suggested McCallister look
into the matter. McCallister refused to do so, stating it was Neill's and Sanford's
problem. Russell Neill at this time stated he had an agreement with the IBEW in
New Mexico and that he could use IBEW personnel if necessary.
McCallister further testified with reference to discussions with Neill and George
Sanford prior to executing the contracts that "Generally we discussed the cost, which
I was very conscious of, and, of course, his ability to do this work, his ability to do
this work regardless of who he may have to use on the job."
Within a few days after Rose-Phoenix started on the job in January 1963
McCallister received a telephone call from Business Representative Joe Housley of
Respondent IBEW Local 769 in Phoenix, Arizona. Housley told McCallister he
i Russell Neill and the Sanfords, the coventurers of Rose-Phoenix, could not obtain a
single performance bond for the entire subcontract, amounting to $1,500,000. In order
to meet this difficulty, an arrangement was made whereby the work was spread over five
separate contracts Four of the contracts, dealing with the erection of steel transmission
towers, provided that the work be completed within 90 days from a given date, and that
after the first agreement the right of Rose-Phoenix to commence work under the terms
of the next succeeding ones was dependent upon satisfactory completion of the prior con-
tract and obtaining another performance bond Work under the fifth contract, relating
to steel work on a power station, was to be commenced when directed by Ets-Hokin.
* Insofar as pertinent, clause 17 provided:
17. LABOR CONDITIONS. The wages paid and working conditions established by
Subcontractor shall be of the same standard as those paid and established by Con-
tractor, and shall be subject to its approval. Subcontractor shall, when furnished
with a copy thereof, comply with and be bound by any labor agreements executed
by Contractor and applicable to the work.
ETS-HOKIN CORPORATION, ETC. 855
wanted to discuss IBEW jurisdiction on the job and mentioned that a non-IBEW
subcontractor was on the job and that Ets-Hokin was in violation of its contract
with the IBEW.
The basis for Housley's claim that Ets-Hokin was in violation of an IBEW agree-
ment stemmed from the fact that Ets-Hokin had many contracts (all of which con-
tained an "annulment" clause) with IBEW locals outside of Arizona, and Rose-
Phoenix did not have an IBEW contract, nor did it obtain its personnel through
IBEW Local 769.
In a letter of February 26, 1963, to Ets-Hokin, International President Freeman
of the IBEW cites the following as a typical annulment clause contained in the
various IBEW local labor agreements:
The Local Unions are part of the International Brotherhood of Electrical
Workers and any violation or annulment of working rules or agreements of any
other Local Union of the IBEW, or the subletting, assigning, or transfer of any
work in connection with electrical work to any person, firm, or corporation not
recognizing the IBEW as the collective bargaining representative on any elec-
trical work in the jurisdiction of this or any other such Local Union by the
Employer, will be sufficient cause for the cancellation of this agreement, after
the facts have been determined by the International Office of the Union.
Shortly after February 1, 1963, McCallister was informed by Ets-Hokin's San
Francisco office that Housley had written a letter to that office, stating he had asked
the IBEW International to cancel the agreements Ets-Hokin had with other IBEW
locals. A few days later McCallister received a telephone call from IBEW Interna-
tional Representative Scott, who advised McCallister that Ets-Hokin was in violation
of the IBEW agreement and that he was coming up to the job and straighten things
out. On or about February 8, 1963, Scott, in company with IBEW Local 769
Business Representative Housley and Local 769 President Nicksic, came to the con-
struction site and met with McCallister and his superintendent.
Scott advised McCallister that Ets-Hokin would have to comply with the agree-
ment, or it would be terminated.5 McCallister stated he had been advised by his San
Francisco office that because of Rose-Phoenix on the job without an IBEW agree-
ment, Ets-Hokin was in violation of the IBEW annulment clauses. McCallister
offered to arrange to have IBEW men on the job. However, Scott insisted the
IBEW would not deal with Rose-Phoenix and this created an impasse, inasmuch
as McCallister did not know how to solve the problem of Ets-Hokin's contractual
relationship with Rose-Phoenix, inasmuch as Respondent Union insisted that not only
IBEW personnel be employed, but that Rose-Phoenix was not eligible for an IBEW
contract and must be removed from the project. At the time McCallister executed
the contracts with Neill, for the Glen Canyon project, he was unaware of the annul-
ment clauses contained in the various contracts with Ets-Hokin outside the State of
Arizona. This lack of knowledge placed Ets-Hokin in a difficult position of becom-
ing involved in a situation where the IBEW contracts were in conflict with its con-
tractual responsibility to Rose-Phoenix, which, in turn, was linked to some extent
with the Operating Engineers' difference with the IBEW.
After Rose-Phoenix employees were on the project for about a week, Russell Neill
informed McCallister that he had nonunion employees. A few clays later Neill
advised McCallister that he had signed a contract with the Operating Engineers.
About February 20 Neill advised McCallister that the Operating Engineers contract
had been terminated. The reasons for Neill's actions in this regard will appear below.
The wage rates negotiated between Rose-Phoenix and Operating Engineers Local
428 on January 22, 1963, were substantially lower than the rates IBEW Local 769
and other IBEW representatives claimed should be paid under the Davis-Bacon wage
determination by the Bureau of Reclamation. After a directive from the Bureau of
Reclamation, Neill paid under protest retroactive wages to conform to the directive.
However, before Rose-Phoenix left the Glen Canyon job, it had reverted to the
original pay scales, and Russell Neill testified that he thought the lower rate was
correct and he did not intend to voluntarily make retroactive payments for the period
his employees were paid at a lower rate. He paid the retroactive wages under protest
in order that he might receive his progress payments due in connection with his work
on the project.
'References in the record to the IBEW "agreement" or "national agreement" refer
to individual agreements with IBEW locals containing the annulment clause.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 13, 1963, McCallister submitted the following written proposal to
Russell Neill which in general provided that if Neill would employ IBEW personnel,
Ets-Hokin would assume the extra cost:
February 13, 1963
Proposal to Dave Neill re change to contract to use I.B.E.W . personnel on
345 KT Transmission Line.
1. Use 5 /2 0 ceiling as per present contract
2. E.H. & G . to pay fringe differential
3. E.H. & G . to pay work accomplished to date on construction.
4. We finance job for Rose Construction.
ETS-HOKIN & GALVAN, INC.
G. A. MCALLISTER
By: (S) G . A. McAllister,
Project Manager.
On February 18, 1963, Russell Neill wrote as follows to McAllister , accepting the
offer and agreeing to use IBEW personnel:
G. A. MCALLISTER , Project Manager
ETS-HOKIN & GALVAN, INC.
P. O. Box 816
Flagstaff, Arizona
Dear Sir: In answer to your proposal of February 13, 1963, that I use
I.B.E.W. personnel , I list the following:
Item 1-5'/2 ceiling acceptable.
Item 2-E.H . & G. to pay fringe differential . My interpretation of this
is all non-productive cost required by I. B . E. W. above the present line
scale as defined in the job specifications which would include, but not be
limited to the following:
a. difference in pay rates.
b. difference in foremans rates which is considerably higher if the
non-working foreman is used as all foreman at present are working
foreman.
c. covered man hauls-I am presently using pickups for both men
and material which is not allowed by I. B. E. W . agreement.
d. travel time to and from shopping points-time presently starts
and ends at work point.
e. contributions to Electrical Union based on payroll.
Item 3-E.H . & G. to pay work accomplished to date of new contract,
which amount will be deducted from contract and payable upon signing of
same.
Item 4-E H. & G. to finance job for Rose Construction at the rate of cost
plus 10 % profit to be billed and paid weekly. Equipment Dealers Manual
rates less 20% as equipment cost. Adjustments of cost plus schedule to be
made quarterly upward or downward as the 5'/Z¢ ceiling indicates.
Acceptance of this agreement and completion of the new contract is the
grounds on which I will commence negotiations with the I.B.E.W.
ROSE CONSTRUCTION
Russell D. Neill, Owner
rdn/sr
However, in the interim, on February 15, 1963, IBEW International Representative
Scott, in a meeting in which he was accompanied by Business Representative Housley
of IBEW Local 769, advised McCallister that the IBEW would not deal with Rose
Construction even though McCallister told them he had instructed Neill of Rose-
Phoenix to conform to the IBEW agreement and to request a meeting with 1BEW
representatives in Phoenix for this purpose.
As a further detail of the events, Russell Neill, in a letter of February 15, 1963,
advised Business Representative Housley of IBEW Local 769 in Phoenix that,
although he had a commitment with the Operating Engineers , he would be available
for negotiation with the IBEW local after February 19, 1963.
As part of the events leading to the termination of Rose-Phoenix as Ets-Hokin's
subcontractor , Housely, a Local 769 IBEW representative , called McCallister again
sometime in February 1963 to inquire as to what was being done. McCallister asked
Housley for 5 to 10 days to work out the legal problems involved in connection with
the demand that Rose-Phoenix be removed from the job.
ETS-HOKIN CORPORATION, ETC. 857
Meanwhile from New Mexico, Russell Neill's attorney and labor adviser, Julian
Ertz, in a letter dated February 25, 1963, advised the Operating Engineers Local 428
that the collective-bargaining agreement between Rose-Phoenix and the Operating
Engineers was terminated effective February 26, 1963. The reason ascribed in the
letter for this action was that Local 428 accepted the Bureau of Reclamation's direc-
tive setting higher wage rates. In his letter, Ertz maintained that the Government
was in error and that the proper wage rates for the Glen Canyon project involving
the employees of Rose-Phoenix should be the wage rates of structural ironworkers
and laborers.
Prior to the events involving Ets-Hokin and the Glen Canyon project, Russell Neill
on August 20, 1962, on behalf of Rose Construction, his individually owned com-
pany, had entered into an agreement with Local 611 IBEW, headquartered in Albu-
querque, New Mexico. This agreement by its terms expired on March 31, 1963.
On February 22, 1963, Neill's attorney, Ertz, addressed a letter to the IBEW Local
Union 611 in Albuquerque with reference to a claimed labor agreement violation by
Rose Construction. The record does not establish the violation as occurring by
reason of the involvement of Neill on the Glen Canyon project, although this would
seem to be a distinct probability. A finding as to the cause of the alleged violation is
not necessary to the resolution of the issues here presented. In any event, in this
letter it was the position of Ertz that Neill was not a party to any effective labor
agreement with Local 611 IBEW.
During this general period between January and April 1963, Jeremy Ets-Hokin,
the president of Ets-Hokm, and officials of Respondent Unions also had conversa-
tions relating to the removal of Rose-Phoenix and its employees from the Glen Can-
yon project.
In January 1963, Vice President Foehn of the IBEW, Jeremy Ets-Hokin, and
Wallace Barrett, vice president in charge of industrial relations, had lunch in San
Francisco. Ets-Hokin testified: "And as I recall the gist of the conversation, after
an exchange of amenities, was to the effect that we were not in Gordon Freeman's
(International president of IBEW) best graces because of this transmission line
matter and we may have our international agreement terminated." Ets-Hokin fur-
ther testified that he was troubled about the loss of his agreement and that Foehn
was suggesting that this termination was an imminent possibility.
After this conversation with Foehn in January, Jeremy Ets-Hokin had a conver-
sation with President Freeman of the IBEW. This talk was a conference telephone
call which included a California congressman and was initiated at Ets-Hokin's
request. Freeman first advised Ets-Hokin that he had been given enough time already
and he would give Ets-Hokin 24 hours to straighten out his affairs and live up to
the agreement Ets-Hokin asked for a week and the congressman also urged this
and the conversation terminated on this note. During the conversation Ets-Hokin
testified that Freeman was insisting that IBEW personnel work on the Glen Canyon
project as provided by contract between the IBEW and Ets-Hokin.
On the same day Jeremy Ets-Hokin spoke to Freeman, he attended a meeting in
Flagstaff, Arizona. Also present were his vice president of operations, Louis Bruni,
and his vice president of industrial relations, Wallace Barrett. Attending for
Respondent Unions were Art Edwards, IBEW International vice president, Inter-
national Representative Scott, and Business Representative Housely of Respondent
IBEW Local 769. Edwards informed Ets-Hokin at this meeting that the only way
Ets-Hokin could avoid having the IBEW contracts canceled would be to have
IBEW personnel replace the employees of Rose-Phoenix and to remove Rose-
Phoenix from the project. Edwards said Rose did not have an IBEW contract and
was not eligible for one. Jeremy Ets-Hokin raised the question of the employees of
Rose-Phoenix having a cause of action against Ets-Hokin and the IBEW for backpay.
Either Edwards or Housely advised Ets-Hokin that it was the IBEW's problem, and
that there would be immunity because all that Ets-Hokin had to do was refer the
employees to the IBEW hiring hall. It was reiterated at this meeting by IBEW
representatives that Rose-Phoenix did not have an agreement with the IBEW and
was not eligible for one.
Following this meeting, Ets-Hokin met with Russell Neill, managing officer of
Rose-Phoenix. Ets-Hokin explained to Neill they were in jeopardy of having the
national agreement canceled, and Ets-Hokin worked out an arrangement with Neill to
terminate Rose-Phoenix as a subcontractor on the Glen Canyon project. Ets-Hokin
gave Neill the choice of making himself acceptable to the IBEW officials (which
he was unable to 'do), sue Ets-Hokin for breach of contract, or take the financial
settlement offered by Ets-Hokin that would terminate his relationship with the Glen
Canyon project. Neill chose making a financial settlement with Ets-Hokin rather
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than to sue for damages. His acceptance of the latter course was undoubtedly based
on his conclusion that under the circumstances it was in his best interest.6 The
written settlement between Rose-Phoenix and Ets-Hokin included the following:
(4) The parties hereto have become involved in disputes concerning the per-
formance of the work under the first subcontract, and they are desirous of
terminating all of the subcontracts and resolving their differences by mutual
agreement, upon the terms and conditions herein contained.
Another provision provided for the payment of $50,000 to Rose-Phoenix as con-
sideration for entering into the termination agreement. There was also a provision
by which Ets-Hokin agreed to pay Rose-Phoenix $135,000 for certain equipment and
Neill, in his testimony, acknowledged that this was a generous appraisal of the value
of the equipment.
In this same written agreement dated May 20, 1963, Russell Neill agreed that he
would not file any further unfair labor practice charges with the National Labor
Relations Board stemming from their dispute. The record reflects that he filed a
charge, Case No. 28-CE-3, on July 30, 1963, which charged Ets-Hokin with com-
mitting an unfair labor practice by violating Section 8(e) of the Act.
Approximately 56 employees of Rose-Phoenix were terminated between April 8
and April 11, 1963.
About a week prior to this, Scott Neill, brother of Russell Neill, and project
manager of Rose-Phoenix work subcontracted by Ets-Hokin, was in a bar with two
of his employees. IBEW Local 769 Representatives Housley and Nicksic were also
present with a third individual. Housely informed Neill he had a fine levied against
him by the IBEW local. Nicksic asked Neill if he was feeling the pressure and also
said that the IBEW would relieve Rose-Phoenix of the job in the near future. After
harsh exchanges of words between the two groups of men, a fight ensued and two
from each group were arrested for disturbing the peace.?
After Rose-Phoenix left the project, Ets-Hokin did not engage another subcon-
tractor but performed the previously subcontracted work with employees obtained
through the hiring hall of IBEW Local 769. Ets-Hokin also executed a collective-
bargaining agreement with Respondent IBEW Local 769 effective until June 20,
1964, which provided that Respondent Local 769 IBEW should be the sole and
exclusive source of referrals of applicants for employment, and included a typical
"annulment" clause as set forth above.
All of the contracts noted in Appendix A contained provisions whereby the respec-
tive IBEW locals were constituted the exclusive source of personnel for Ets-Hokin.
B. Analysis and concluding findings
1. Alleged violations of Section 8(e)
a. Responsibility of Local 769 IBEW
As noted above, Respondent IBEW Local 769 had not executed an agreement
with Ets-Hokin after Rose-Phoenix was removed from the Glen Canyon project.
It contends this fact, along with the wording of the "annulment" clause vesting final
authority in the IBEW International president to cancel labor agreements, absolves it
from responsibility for the events leading to the termination of Rose-Phoenix and
the removal of its employees from the Glen Canyon project.
The typical "annulment" clause, as set forth above, which is a pivotal factor in
the issues presented, is repeated for convenience of reference:
The Local Unions are a part of the International Brotherhood of Electrical
Workers and any violation or annulment of working rules or agreements of
any other Local Union of the IBEW. or the subletting, assigning, or transfer of
any work in connection with the electrical work to any person, firm, or cor-
9 Although not objecting to Jeremy Ets-Hokin's testimony with reference to the con-
ference between Russell Neill and Ets-Hokin's officials, Respondent Unions objected to
Neill's testimony relative to this conversation as hearsay and not binding on them.
Motions to strike Neill's testimony concerning this conference were made which are
here denied. The findings and conclusions made herein are not dependent upon Russell
Neill's testimony, and the import of it is substantially the same as that of the testi-
mony of Jeremy Ets-Hokin. Moreover, while the testimony concerning this conference
may be hearsay with respect to Respondent Unions, it is not hearsay with respect to
Respondent Ets-Hokin.
7 Motions to strike all or part of Scott Neill's testimony by the General Counsel and by
counsel for Respondent IBEW Local 769 have been considered and are denied
ETS-HOKIN CORPORATION, ETC. 859
poration not recognizing the IBEW as a collective bargaining representative
on any electrical work in the jurisdiction of this or any other such Local Union
by the Employer will be sufficient cause for cancellation of this agreement after
the facts have been determined by the International Office of the Union.
The recital that the "Local Unions are a part of the International Brotherhood
of Electrical Workers" lends substance to the contention of the General Counsel
that officials of Local 769 IBEW and the International officials made common cause,
with joint responsibility, in obtaining the objective of removing Rose-Phoenix and
replacing its employees with IBEW personnel. The record leaves no doubt that
Respondent Local 769 and Respondent International had this joint objective. The
joint responsibility of Respondent Local 769, along with that of Respondent IBEW
International, also stems from the activities of officials of Local 769. They first
attempted to have Ets-Hokin Job Superintendent McCallister award the work to
IBEW personnel. In this case it would be the personnel of IBEW Local 769 as it
had territorial jurisdiction in the area where the Glen Canyon project was located.
Failing this, they initiated a complaint with Federal authorities, claiming Rose-
Phoenix was in violation of Davis-Bacon wage rates. An official of Respondent
Local 769, by letter, advised Ets-Hokin he had requested the IBEW International to
terminate agreements Ets-Hokin had with other IBEW locals in territorial juris-
dictions other than the territory of Local 769. Respondent Local 769 officials par-
ticipated in conferences with Ets-Hokin which eventuated in the removal of Rose-
Phoenix. The statements attributed to the officials of Respondent International,
referring to IBEW personnel being utilized on the Glen Canyon project, leave no
doubt that it was contemplated that personnel be obtained through Respondent
Local 769. This objective was achieved, and Ets-Hokin, after Rose-Phoenix left
the project, executed a contract with Local 769 and obtained personnel through its
hiring hall to replace the employees of Rose-Phoenix. The objective of Respond-
ent Local 769, as well as that of Respondent International, was identical. Even
aside from the recital in the "annulment" clause that the local unions were part of
the International, the joint activity in this case for a joint objective creates a joint
responsibility and it is found that Local 769 shares the responsibility for the removal
of Rose-Phoenix and its employees to the same degree as does the International.
b. The legality of the "annulment" clause
This clause reflects a prohibition against the signatory employer doing business
with persons not having IBEW contracts and a provision for cancellation of all
extant agreements with IBEW locals if this prohibition is not followed. The legality
of all the IBEW contracts with Ets-Hokin containing this "annulment" clause is in
issue inasmuch as cancellation of all contracts was threatened unless Rose-Phoenix
was removed by Ets-Hokin from the Glen Canyon project.
Different considerations apply to the "subcontracting" and the cancellation aspects
of the "annulment" clause. It is contended by the General Counsel that Section
8(e) is violated by both facets of this clause.
Insofar as here pertinent, Section 8(e) of the Act makes it an unfair labor practice
for an employer and a labor organization to:
. enter into any contract or agreement, express or implied, whereby such
employer ceases or refrains or agrees to cease and refrain from . . . doing
business with any other person . . . . Piovided, That nothing in this subsec-
tion (e) shall apply to an agreement between a labor organization and an em-
ployer in the construction industry relating to the contracting or subcontracting
of work to be done at the site of the construction, alteration, painting, or repair
of a building, structure, or other work. . . .
In connection with the jobsite requisite of the construction proviso to 8(e),
the Board has strictly construed this proviso to be effective where the contract in ques-
tion, otherwise void under 8(e), applies only to "job site" construction work. Inter-
national Brotherhood of Teamsters, Local 294 (Island Dock Lumber, Inc.), 145
NLRB 484; Southern California District Council of Hod Carriers (Golding and
Jones, Inc.), 144 NLRB 978; Ohio Valley Carpenters District Council (Cardinal
Industries, Inc.), 136 NLRB 978; and Teamsters Local Union No. 559 (Connecticut
Sand and Stone Corporation), 138 NLRB 532.
The defective aspects of the subcontracting portion of the "annulment" clause are
that it does not refer to either construction work or work to be done at the site of
construction. The construction proviso to Section 8(e) recites that 8(e) shall not
apply "To an agreement between a labor organization and an employer in the con-
struction industry relating to the contracting or subcontracting of work to be done
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the site of the construction . . ' The General Counsel argues the contractual
relationship established by the "annulment" clause restricts subcontracting by Ets-
Hokin away from the jobsite, and is not protected by the construction proviso to
8(e). A literal reading of the typical annulment clauses supports this contention.
The scope of the "annulment" clause would certainly include prefabrication or elec-
trical work performed by the subcontractors of Ets-Hokin and away from the con-
struction jobsite.
Respondents' attempt to meet this issue by pointing out that the utilization of
personnel on the Glen Canyon project, insofar as it applied to Respondent Unions,
was obviously confined to work at the construction site. However, this leaves
unanswered the application of the "annulment" clauses Respondent Unions were
seeking to enforce which were applicable to territorial jurisdictions of IBEW locals
outside of the territorial jurisdiction involved in the Glen Canyon project. The record
is silent as to whether such clauses had an operative effect away from the site of
construction.
Respondents further rely on the fact that the record contains a stipulation that the
labor agreements containing the typical "annulment" clauses which were the subjects
of cancellation unless Rose-Phoenix was removed from the Glen Canyon project were
construction work contracts. However, because there is no showing this construc-
tion work was confined to work to be done at the jobsite, this record does not estab-
lish a practice that would be an arguable basis for bringing the "annulment" clauses
within the 8(e) construction proviso despite the failure to comply with its literal
terms.
It must remain a matter of speculation whether these agreements were used
affirmatively to restrict work done away from the jobsite or what inhibitory effects
on doing business with non-IBEW employers away from the jobsite flowed from
these "annulment" clauses.
The language in the "annulment" clauses is unambiguous and since the record
does not contain evidence that the practice of the parties actually complied with the
terms of the construction proviso, there is not an adequate basis for finding that the
typical "annulment" clauses are protected by the construction proviso of Section
8(e).
This finding is supported by a basic tenet of statutory construction. In 50 Ameri-
can Jurisprudence at 458:
However, it is a general rule of statutory construction that a proviso which
operates to limit the application of the provisions of a statute, general in terms,
should be strictly construed and held to include no case not clearly within the
purpose, letter, or expressed terms of the proviso.
In light of these considerations, it is found that the typical "annulment" clauses
contained in the labor agreements between Ets-Hokin and IBEW locals are void and
unenforceable on their face because of the failure of these clauses to limit the sub-
contracting restrictions to jobsite construction work.
Since the same clause was included in the contract executed between Ets-Hokin
and Respondent Local 769, and since the record does not establish affirmatively
that all of the future relationships between this Local and Ets-Hokin would be
limited to jobsite construction work, it follows from a logical extension of the con-
siderations noted above that the "annulment" clause in the agreement beween Ets-
Hokin and Local 769 IBEW is also void under 8(e).
c. The cancellation aspect of the "annulment" clause
The General Counsel contends that the cancellation provision in the typical
"annulment" clauses also operates to remove these clauses from the protection of
the con°truction proviso to 8(e).
If it is accepted that the subcontracting strictures set forth in the "annulment"
clause are not protected by the 8(e) construction proviso, it follows that the cancella-
tion provisions contained in the "annulment" clause are also unlawful.
In Amalgamated Lithographers of America, Local 17 (The Employing Lithog-
raphers), 130 NLRB 985, enfd. 309 F. 2d 31 (C.A. 9), where there was an unlawful
subcontracting clause under 8(e) and a contract cancellation in the event it was not
observed, the Board stated at page 989 of its Decision:
The termination clause in this case is the section intended to insure that the
contracting employer will not handle certain "hot" goods. As a component
part of the implied agreement to achieve an illegal objective, it partakes of that
illegality.
ETS-HOKIN CORPORATION, ETC. 861
On enforcement, the Court of Appeals for the Ninth Circuit stated at page 41:
Since it is unlawful under Section 8(e) for an employer to agree that he will re-
fuse to handle work of another employer which he customarily handles, this ter-
mination clause is unlawful. The Board did not err in so finding and concluding.
Consequently, here, since the "annulment" clauses are not protected by the con-
struction proviso to 8(e), the cancellation feature of these clauses are also unlawful.8
2. The alleged 8(b) (4) (ii) (A) violations
Having found that the "annulment" clauses violated Section 8(e) of the Act, the
question as to whether the Respondent Unions violated Section 8(b)(4)(ii)(A) in
connection with this "annulment" clause will next be considered.
Insofar as here pertinent, Section 8(b) (4) (ii) (A) makes it an unfair labor prac-
tice for a union "to threaten, coerce, or restrain a person ... where an object is
forcing or requiring any employer . . . to enter into any agreement which is pro-
hibited by Section 8(e)." It will be recalled that the typical "annulment" clauses
were incorporated in existing labor agreements between IBEW locals and Ets-
Hokin when the events leading to the removal of Rose-Phoenix from the Glen
Canyon project occurred. It was these clauses in various labor agreements that
were sought to be enforced. The other "annulment" clause contained in the agree-
ment which Ets-Hokin and Local 769 IBEW executed after the removal of Rose-
Phoenix is in a different category, and will be considered separately.
Section 8(b) (4) (ii) (A) prohibits a union from using coercive acts to obtain
a proscribed object. In the case at hand, in considering 8(b)(4)(ii)(A), the Act
prohibits a union from coercing an employer (Ets-Hokin) in order to require Ets-
Hokin to enter into an agreement unlawful under 8(e).
This record establishes without question that Ets-Hokin was pressured by Respond-
ent Unions to remove Rose-Phoenix because of Ets-Hokin's apprehension with respect
to having many of its IBEW contracts canceled. This type of pressure is unlawful
coercion within the meaning of Section 8(b) (4).9
In Amalgamated Lithographers, supra, at 988, the Board stated "an employer who
is faced with the possibility of having his contract completely reopened if he handles
struck or nonunion work cannot realistically be said to act `voluntarily' in refusing to
handle such work."
A union's action in filing a lawsuit to obtain compliance with a restrictive sub-
contracting agreement which was protected by the construction proviso to Section
8(e) was held to have violated 8(b)(4) because this type of action was pressure
not permitted by the case law interpretations of the Act. Local Union No. 41,
Sheetmetal Workers International Association v. Hardy Corporation, 53 LRRM
2509, 2512 [218 F. Supp. 556] (D.C. N. Ala.) :
The net effect of Section 8(e), supra, on the law relating to construction
industry hot cargo clauses is that the case law regarding hot cargo agreements
is left as it was prior to the 1959 amendments to the L.M.R.A. of 1947, if the
agreement is valid within the construction industry proviso to subsection 8(e)
of the Act. That is, notwithstanding the Section 8(e) validity of the agreement,
unions are still prohibited from exerting the pressure specified in subsection
8(b)(4) where the object of such conduct is to either acquire or enforce a
hot cargo agreement with an employer in the construction industry.
Here the coercion was less subtle and also achieved its object. Ets-Hokin was
pressured by Respondent Unions to terminate its business relationship with Rose-
Phoenix by the enforcement of the provisions of the "annulment" clauses. The
defense of Respondent Unions and Ets-Hokin , in large part , seems to rest on their
view that all that was being done was an attempt to have Ets-Hokin comply with
8 A more difficult question as to the validity of a cancellation provision in a subcontract-
ing clause protected by the construction proviso to 8(e) need not be reached here
O The parties stipulated that the agreements containing the "annulment" clauses also
contained provisions conferring on the respective IBEW locals the right to operate
exclusive hiring halls . Although the existence of this type of provision likely added to the
apprehension of Jeremy Ets-Hokin at the prospect of having all his IBEW labor agree-
ments terminated , it is not necessary , in order to here establish coercion , to find that the
threat to cancel the agreements was a threat to withhold personnel from Ets-Hokin if
the agreements were canceled . Coercion is amply demonstrated by Jeremy Ets-Hokin's
expressed anxiety at the prospects of cancellation of these agreements and by the efforts
he made to avoid such a result.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its contractual obligation to Respondent Unions. Even assuming the "annulment"
clauses were valid, the existence of a contractual relationship between Ets-Hokin and
Respondent Unions in no way immunizes action otherwise prohibited by the Act.
See, for example, Local 1976, United Brotherhood of Carpenters, etc. (Sand Door
and Plywood Co.) v. N.L R.B., 357 U.S. 93, 106, when the Supreme Court stated:
"The realities of coercion are not altered simply because it is said that the employer
is forced to carry out a prior engagement rather than forced now to cease doing
business with another."
In N L.R B. v. International Union of Operating Engineers, Local No. 12, AFL-
CIO (Tri-County Assn. of Civil Engineers), 293 F. 2d 319 (C.A. 9), the court held
at 322: "An attempt to force one employer to sever business relations with another
person is not protected by virtue of reliance upon a contract with the employer."
To the same effect are the decisions in N.L R.B. v. Bangor Building Trades Coun-
cil (Division Const. Co.), 278 F. 2d 287, 290 (C.A. 1); N.L.R.B. v. Local 294,
Teamsters (Bonded Freightways), 273 F. 2d 696 (C A. 2).
Consideration will next be given to the significance of record events in connection
with the wording of 8 (b) (4) (ii) (A) which makes it an unfair labor practice for
unions to force an employer "to enter into" an agreement unlawful under 8(e).
In Dan McKinney Co., 137 NLRB 649, the employer, party to a contract pro-
scribed by 8(e), gave effect to its provisions without any action on the part of the
union. In holding that this action of the employer consituted an "entering into" an
unlawful agreement, the Board stated at 654:
In cases previously decided we have indicated our belief that the words "to
enter into" must be interpreted broadly and encompass the concepts of reaffir-
mation, maintenance, or giving effect to any agreement which is within the
scope of Section 8(e).
As authority for this previously expressed position, the Board cites the following
cases: Los Angeles Mailers Union No. 9, I.T.U. (Hillbro Newspaper Printing Com-
pany Division of Hearst Publishing Company, Inc.), 135 NLRB 1132; and District
No. 9, International Association of Machinists, AFL-CIO (Greater St Louis Auto-
motive Trimmers and Upholsterers Association, Inc.), 134 NLRB 1354. These
cases involve contiactual provisions violative of Section 8(e) and not within the
scope of the construction proviso. To the same affect is the Board's decision in Retail
Clerks Union, Locals 770, 899, 1167, 1428 and 1422 (The Frito Company, Western
Division), 138 NLRB 244, where the Board held that the enforcement of an invalid
clause under 8(e) constituted an "entering into" within the meaning of Section
8(b) (4) (ii) (A).
In a recent decision, the Board has indicated that different considerations apply
to the enforcement of contracts that are protected by the construction proviso to 8(e).
In International Union of Operating Engineers, Local No. 12, AFL-CIO (B. R.
Schedell Contractor, Inc.), 145 NLRB 351, the Board held that it was not a viola-
tion of Section 8(b)(4)(ii)(A) of the Act for a union to attempt to enforce com-
pliance with the terms of a restrictive subcontracting clause protected by the 8(e)
construction proviso, although holding the union violated Section 8(b) (4) (ii) (B)
by such action.
However, in a case issued only a few days prior to the Schedell case, the Board
reiterated its position with respect to illegality of utilizing pressure to obtain a contract
lawful in the construction industry by virtue of the proviso to Section 8(e). Los
Angeles Building and Construction Trades Council; and Carpenters Local Union No.
1752, AFL-CIO (Murray W. McDaniel, d/b/a Treasure Homes), 145 NLRB 279.10
The Board and the Court of Appeals for the Ninth Circuit, as a result of Construc-
tion, Production & Maintenance Laborers Union, Local 383, et al. (Colson and
Stevens) v. N.L.R.B., 323 F. 2d 422, and Schedell, supra, are in agreement that it is
not violative of Section 8(b)(4)(A) of the Act for a union to enforce a hot cargo
10 The Board's decision contains the following:
The facts in this case, as the Respondents admit in their brief, do not differ mate-
rially from the facts in Construction, Production 4 Maintenance Laborers Union
Local 383, APL-CIO, et al. (Colson and Stevens Construction Co., Inc.), 137 NLRB
1650, enforcement denied 323 F. 2d 422 (CA 9). Though aware of the refusal of
the Court of Appeals for the Ninth Circuit to enforce the Board's decision in Colson
and Stevens, the Board respectfully disagrees with the court's opinion in that case,
and has decided to adhere to its original decision. Accordingly, for the reasons set
forth in our Colson and Stevens decision, supra, we find that the Respondents, by
their acts and conduct set forth above, have violated Section 8(b)(4)(1), (ii) (A)
and (B) of the Act.
ETS-HOKIN CORPORATION, ETC. 863
type of agreement made lawful by the construction proviso to 8(e). The Court of
Appeals for the Ninth Circuit also held in Colson and Stevens that it was not a viola-
tion of Section 8(b)(4)(B) for a union to use coercion in an attempt to obtain a
restrictive contract protected by the construction proviso to Section 8(e). The deci-
sion in Colson and Stevens is read to indicate that a violation of 8(b) (4) (A) and
(B) was not found because of the construction proviso to Section 8(e) and hence the
decision of the Ninth Circuit is not a precedent for finding no violation of Section
8(b) (4) (A) and (B) in a case presented by the facts of this record.
Cases not involving construction (Hillbro, McKinney, St. Louis, Automotive
Trimmers, and Frito, supra) explicitly hold that enforcing or reaffirming or main-
taining a contractual provision unlawful under 8(e) is a violation of 8(b)(4)(A)
on the part of a union attempting to so enforce this type of contractual provision.
An accommodation of the result of these cases with Schedell, supra, has not yet
been articulated. One arguable distinction is that an agreement protected by the
8(e) construction proviso is lawful from its inception, and an attempt to enforce it
is not viewed by the Board as within the meaning of the statutory term "to enter
into." On the other hand, an agreemcnt void under 8(e) may be regarded as non-
existent and every attempt to reaffirm, maintain, or enforce such a void agree-
ment may fall within the meaning of the statutory language "to enter into" as used
in Section 8(b) (4) (A).
The execution of the agreement between Ets-Hokin and Respondent Local 769,
in April 1963, containing the unlawful "annulment" clause was a violation of Sec-
tion 8(e) by Respondent Ets-Hokin and Local 769, for the reasons set forth above,
holding such clauses void.
It has been found that both Respondent Unions violated 8(b)(4)(ii)(A) in
coercing Ets-Hokin to remove Rose-Phoenix from the Glen Canyon project, by
enforcing the "annulment" clauses. Whether or not Ets-Hokin was the direct
employer of the personnel succeeding the employees of Rose-Proenix, as far as this
record goes, was a matter of indifference to Respondent Unions as long as the
replacements were obtained through the hiring hall of Local 769. Stated another
way, a subcontractor with an IBEW contract would have been equally acceptable
to Respondent Unions as a replacement for Rose-Phoenix. Because of this, it is
found that this record lacks substantial evidence on which to base a finding that
the pressure exerted to displace Rose-Phoenix was also aimed at having Ets-Hokin
"enter into" an agreement unlawful under Section 8(e) with Respondent Local
769, and thus no violation of 8(b) (4) (ii) (A) is established by the events leading
to the execution of the agreement in April 1963 between Ets-Hokin and Respondent
Local 769, even though the agreement contained a provision void under 8(e) of
the Act.
3. The alleged 8(b) (4) (it) (B) violations
As far as applicable here, 8(b)(4)(ii)(B) of the Act makes it an unfair labor
practice for a union to force an employer to cease doing business with another
person Here Respondent Unions pressure Ets-Hokin to cease doing business with
Rose-Phoenix. Finding a violation of 8(b)(4)(ii)(B) is not complicated by Sec-
tion 8(e) with its construction proviso, nor by the necessity of construing the statu-
tory meaning of the phrase "to enter into," insofar as 8(b) (4) (A) relates to a
prohibition against obtaining a contract unlawful under 8(e).
The Board's majority decision, along with the dissent, in Hillbro, and the Board's
decisions in Treasure Homes and Colson and Stevens, supra, reflect that the Board
has a firm belief in the proposition that causing an employer to cease doing business
with another person is a violation of Section 8(b) (4) (B), irrespective of what type
of contractual provisions are involved. Here Respondent Unions coerced or caused
Ets-Hokin to cease doing business with Rose-Phoenix and hence a violation of
Section 8(b)(4)(ii)(B) is established.
4. Alleged violations of 8 (a) (1) and (3) by Ets-Hokin and
8(b)(1)(A) and (2) by Respondent Unions
This record clearly establishes that the employees of Rose-Phoenix lost their
employment as a proximate cause of Respondent Unions' pressure on Ets-Hokin
to remove Rose-Phoenix and its employees from the job and to have them replaced
with personnel secured through Respondent Local 769's hiring hall.
Insofar as is pertinent, Section 8(b)(2) of the Act provides that it is an unfair
labor practice for a union "to cause an employer to discriminate against an
employee in violation of subsection (a)(3)-" Subsection (a)(3) of Section 8
provides in pertinent part that it shall be an unfair labor practice for an employe-
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"by discrimination in regard to hire or tenure of employment or any term or con-
dition of employment to encourage or discourage membership in any labor organi-
zation-"
This record reflects discrimination by an employer against employees caused by
a labor organization which would naturally tend to encourage or discourage mem-
bership in two labor organizations, i e., the IBEW and the Operating Engineers.
Here Ets-Hokin does not stand in the relationship of an employer to employees of
Rose-Phoenix under the ordinary common law concept of employer-employee rela-
tionship. However, the Board, relying in part upon decisions of the United States
Supreme Court, has determined that a violation of Section 8(a)(3) may be caused
by an employer whose relationship with the employees suffering discrimination is
not the customary common law relationship. In Northern California Chapter,
AGC (St. Maurice, Helmkemp & Musser), 119 NLRB 1026, enfd. 266 F. 2d 905
(C.A.D.C.), cert. denied 361 U.S 834, the Board in its majority opinion in consider-
ing this question noted at page 1030:
We consider it immaterial that no formal employer-employee relationship
existed between AGC and Musser's employees. A defense, grounded on that
fact, has no statutory support . As the Board stated in the Austin case
[Austin Company, 101 NLRB 1257, 1259] :
... the statute, read literally precludes any employer from discriminating
with respect to any employee, for Section 8(a)(3) does not limit its
prohibitions to acts of an employer vis-a-vis his own employees.
In reaching its decision the Board relied on Phelps Dodge Corp. v. N.L.R.B., 313
U.S. 177, where a discrimination was found to exist with reference to a prospective
employee where an employer-employee relationship had never been established.
Also in N.L.R.B. V. Hearst Publications, Inc., 322 U.S. 111, an employee who was
technically an independent contractor was found to be within the scope of the defi-
nition of employee as used by the National Labor Relations Act.
In enforcing the Board's decision in the AGC case, supra, which found a viola-
tion of 8(b)(2) and 8(a)(3), flowing from a factual situation parallel to the case
at hand, the Court of Appeals for the District of Columbia stated at 909:
It is also contended that no unfair labor practice can be found where the
discriminatory action is against employees other than those of the direct
employer; specifically, that AGC could not be found to have violated section
8(a)(3) by terminating the employment of Musser's employees, nor could
Local 3 have been found to have violated section 8(b)(2) by causing that
action, since there was no direct employer-employee relationship between AGC
and Musser's employees. This position had the support of two members of
the Board, relying upon previous Board decisions, The Great Atlantic &
Pacific Tea Co., 116 NLRB 943 (1956); United Association of Journeymen of
the Plumbing and Pipefitting Industry, 116 NLRB 119 (1956), and language in
N.L.R.B. v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 953,
95 L.Ed. 1284. The provisions of the Act here involved.... do not read as this
contention would construe them, in contrast with language in other provisions.
The terms used in the applicable provision bear an interpretation which reaches
discrimination as to employees of another employer. We must guard against
this broad language a scope which includes employees whose relationship to
the controversy is so attenuated as to cause their inclusion to defeat a sound
administration of the Act; yet the closeness of Musser to the dispute leads us
to refer to the Board's interpretation which brings its four employees within
the questioned protection. This is an area of interpretation into which we
should follow the Board. N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111,
128-129, 64 S.Ct. 851, 88 L.Ed. 1170; N.L.R.B. v. Gluck Brewing Co., 8 Cir.,
1944, 144 F. 2d 847, 855.
Here, as in the Northern California Chapter AGC case, supra, Rose-Phoenix
employees stood in the same relationship to Ets-Hokin as did the employees of
the subcontractor Musser in the AGC case who were found to have been discrimi-
nated against in violation of 8(a)(3) by the general contractor, and of 8(b)(2)
by the Respondent Unions.
Here Respondent Unions caused employees to be terminated because of union
considerations, violating 8(b) (2) and 8(b) (1) (A). Ets-Hokin was the employer
caused to effect this discrimination, thereby violating Section 8(a)(3) and (1) of
the Act. The violations of Section 8 (b) (1) (A) and 8(a)(1) are derivative viola-
tions of 8(b)(2) and 8(a)(3), respectively.
ETS-HOKIN CORPORATION, ETC. 865
5. Special defenses asserted by Respondent Ets-Hokin
a. Misrepresentation defense
Ets-Hokin contends that the record indicates that Russell Neill misrepresented his
IBEW contractual situation to Ets-Hokin, and this was the basis for a recission of
the agreement by Ets-Hokin. Nothing appears in this record that would support the
contention of a misrepresentation by Neill or that Ets-Hokin canceled the sub-
contract because of such misrepresentation. Neill, at the time of the execution of
the contract between Ets-Hokin and Rose-Phoenix, stated that he had a contract
with the IBEW in New Mexico and would use IBEW personnel if necessary. Ets-
Hokin Representative McCallister was indifferent to the question of union jurisdic-
tional claims as between the Operating Engineers and the IBEW at the time of the
execution of the contract. It seems a fair assumption that McCallister's expressed
interest in costs was a substantial motivating factor leading to Ets-Hokin's execution
of the contract with Rose-Phoenix, irrespective of the union affiliation of the per-
sonnel to be used by Rose-Phoenix.
b. The illegal assistance defense
Ets-Hokin contends that the action of Rose-Phoenix in dealing with the Operating
Engineers demonstrates illegal assistance to that union and is an unfair labor prac-
tice which should be considered as a special defense to any charge of unfair labor
practice against Ets-Hokin. Aside from the fact that Rose-Phoenix is not the only
charging party in this consolidated proceeding, the contention of Ets-Hokin that
Rose-Phoenix was discharged because it gave illegal assistance to the Operating
Engineers Union is totally unsupported by the record. The record reflects that
Rose-Phoenix was terminated because of the pressure instituted by the Respondent
IBEW Unions.
c. The breach of contract defense
The essence of this defense is that the contract signed between Rose-Phoenix and
Ets-Hokin recited that Rose-Phoenix must comply at all times with all applicable
laws and regulations and that if Rose-Phoenix failed to perform, Ets-Hokin has the
right to take over the work on 24 hours' written notice. It is contended that because
of the illegal assistance given to Rose-Phoenix, the National Labor Relations Act
was violated and that Ets-Hokin had a contractual right to take back the work. The
difficulties with this position are that the record does not demonstrate affirmatively
Rose-Phoenix committed unfair labor practices and, further, it demonstrates that
the reason Rose-Phoenix was removed from the Glen Canyon project was because
of pressure from the IBEW and not because of any breach or alleged breach of con-
tractual obligation by Rose-Phoenix.
d. The negotiated withdrawal defense
Here the argument is made that the agreement by Rose-Phoenix , terminating the
subcontracting relationship with Ets-Hokin , constituted an accord and satisfaction
including a bar to this proceeding brought by the General Counsel of the Board
Among other objections to this contention is one that the Charging Parties included
the Operating Engineers , as well as Russell Neill of Rose-Phoenix , and further the
compromise settlement recognizes that there were unfair labor practice charges
pending against Ets-Hokin , at the time of its execution . In the section of this
Decision entitled "The Remedy," the conduct of Neill in filing a charge after the
settlement agreement , wherein he agreed not to file any further charges, will be
adverted to as a factor in considering an appropriate remedy.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of Ets-Hokin Corporation described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found Respondents have engaged in unfair labor practices, it will be
recommended that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
206-446-66-vol. 151 56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The question is raised by this record as to whether the Rose-Phoenix joint ven-
turers are entitled to remedial relief as well as their employees. As a general prop-
osition, the restoration of parties adversely affected by unfair labor practices to
the status quo ante is an appropriate form of remedy to be exercised by the Board
insofar as possible. Assuming this proposition to be correct, and that a violation
of 8(e) would be appropriately remedied by the restoration of an unlawfully
displaced subcontractor, a possible remedy to be considered in this case would
include an order reinstating Rose-Phoenix as the subcontractor on the Glen Canyon
project. It is not difficult to conceive of the many problems that such an order
would entail. Such problems do not necessarily rule out this order but, for the
reasons indicated below, this type of remedy will not be recommended in this case.
In some circumstances, if the project were of sufficient duration, the reinstatement
of the displaced subcontractor might be the most feasible method of effecting
reinstatement of employees discharged because of discrimination.
The latter consideration is not vital here as Ets-Hokin is within the jurisdiction
of the Board and subject to a remedial order directing an offer of reinstatement
to the employees, whereas if a subcontractor replaced Rose-Phoenix it would not
necessarily be a party to the proceeding and hence not subject to a Board order.
Since reinstatement of Rose-Phoenix as a subcontractor is not a necessary incident
of restoring employees to their prediscrimination status, an order requiring a rein-
statement of Rose-Phoenix must rest on the entitlement of Rose-Phoenix and not of
its employees.
Although Russell Neill of Rose-Phoenix filed an unfair labor practice charge
alleging a violation of 8(e) by Ets-Hokin, it cannot be assumed that he sought
reinstatement as a subcontractor.
The settlement agreement between Ets-Hokin and Rose-Phoenix provided for a
$50,000 payment to Rose-Phoenix as consideration for entering the agreement. In
addition, Ets-Hokin paid an additional financial consideration by reason of the
"generous" appraisal of the value of the equipment purchased from Rose-Phoenix
by Ets-Hokin. Although the choice of remaining as subcontractor was taken from
Rose-Phoenix, it seems likely the financial consideration received approximated
damages provable in a civil suit for breach of contract. Russell Neill, in his letter
to McCallister, agreeing to use IBEW personnel, reflected a keen sense of financial
acumen. The record also reflects he had the services of legal counsel available in
connection with his problems on the Glen Canyon project which also supports the
inference Rose-Phoenix obtained from Ets-Hokin a fair financial consideration for
agreeing to terminate the five subcontracts.
A recommended order providing for the reinstatement of Rose-Phoenix as sub-
contractor should, on the facts of this record, be only considered on the basis of
the 8(e) unfair labor practice charge filed by Russell Neill. However, that charge
was filed after the agreement with Ets-Hokin wherein Russell Neill expressly agreed
not to file further unfair labor practice charges against Ets-Hokin in connection
with the Glen Canyon project. This record also reflects Russell Neill had no com-
punction against switching employees because of union affiliation provided he was
compensated for so doing, which reflects a disregard for the rights of employees
guaranteed by the Act.
A combination of the above factors, on balance, negates the appropriateness of
recommending an order reinstating Rose-Phoenix as a subcontractor even assuming
such a remedy would be legally correct.
It is recognized that the project likely would be completed in any event before
such a recommendation could be implemented. However, this contingency is not
regarded as a valid basis for failing to recommend such a remedy.
With respect to the displaced employees, it will be recommended that Ets-Hokin
offer them employment at the work from which they were displaced on the Glen
Canyon project at the wage rates they were receiving at the time of their termination
in April 1963, plus any periodic increases in the wage scale they were receiving.
This record does not provide an adequate basis for ascertaining the correct Davis-
Bacon wage scale even if this were the proper forum to make such a determination.
It will also be recommended that all Respondents' liability for any wage loss suffered
by the displaced employees shall be joint and several and shall be computed according
to Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, with interest
computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
The liability for backpay shall continue with respect to Respondent Ets-Hokin
until such time as it makes an unconditional offer of reinstatement to the employees
who would have continued working on the Glen Canyon project absent the discrim-
ination exercised against them.
ETS-HOKIN CORPORATION, ETC. 867
The liability of Respondent Unions for backpay, if any, shall terminate 5 days
subsequent to the written notice from such Respondent Unions to Ets-Hokin with-
drawing the Respondent Unions' objections to the employment of the employees
suffering discrimination, or on the termination of the job if occurring prior thereto.
With respect to the recommended remedial action in connection with the "annul-
ment" clauses of various IBEW local unions included in the attached Appendix A,
consideration has been given to the recital in such agreements to the effect that the
locals are a part of the International, and that a violation of the restrictive subcon-
tracting clause by any employer, in connection with any local contract, would be a
basis for canceling agreements with any other IBEW local. This language, in addi-
tion to the threatened cancellation of the agreements included in Appendix A,
indicates specific remedial action with respect to all the unlawful agreements extant
between Ets-Hokin and the IBEW locals. Also because employees were discrimina-
torily discharged and the record reflects a wide use of unlawful restrictive subcon-
tracting clauses by Respondent Unions, a broad cease-and-desist order will be
recommended."
Upon the basis of the foregoing findings of fact, and upon entire record in the
case, I make the following.
CONCLUSIONS OF LAW
1. Ets-Hokin Corporation and Rose Construction, Phoenix Division, are em-
ployers within the meaning of the Act.
2. International Brotherhood of Electrical Workers, AFL-CIO; Local Union
No. 769, International Brotherhood of Electrical Workers, AFL-CIO; and Local
Union No. 428, International Union of Operating Engineers, AFL-CIO, are labor
organizations within the meaning of the Act.
3. By enforcing the restrictive subcontracting provision in the "annulment"
clauses, resulting in a termination of employment of the employees of Rose-Phoenix,
Ets-Hokin has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act.
4. By causing Ets-Hokin to remove Rose-Phoenix and its employees from the
Glen Canyon project by the enforcement of the unlawful "annulment" labor prac-
tices within the meaning of Section 8(b) (1) (A), 8(b) (2), and 8(b) (4) (ii) (A) and
(B) of the Act.
5. By entering into agreements containing the unlawful "annulment" clause,
Respondent Ets-Hokin and Respondent Unions have egaged in unfair labor prac-
tices within the meaning of Section 8(e) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from, publication.]
11 N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
APPENDIX A
I.B.E.W. NULLIFICATION CLAUSES
SOUTHWESTERN LINE CONSTRUCTORS, N.E.C.A.
LOCAL 769
ARTICLE II, SECTION 8
Section 8. Local Union 769 is a part of the International Brotherhood of Elec-
trical Workers and any violation or annulment of working rules or agreements of
any other Local Union of the IBEW, or the sub-letting, assigning, or transfer of any
work in connection with electrical work to any person, firm or corporation not
recognizing the IBEW as the collective bargaining representative on any electrical
work in the jurisdiction of this or any other such Local Union by the Employer, will
be sufficient cause for cancellation of this agreement, after the facts have been
determined by the International Office of the Union.
DAKOTAS CHAPTER, NECA, INC.
LOCAL #426
ARTICLE IV, SECTION 7
Sec. 7. Local Union #426 is a part of the International Brotherhood of Elec-
trical Workers and any violation or annulment of working rules or Agreement of
any other Local Union of the IBEW or the sub-letting, assigning or transfer of any
work to any person, firm or corporation not recognizing the IBEW as the exclusive
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of his employees, will be sufficient cause for cancellation of this
Agreement, after the facts have been determined by the International Office of the
Union.
MONTEREY, CALIFORNIA
LOCAL # 1072
ARTICLE II, SECTION 9
Sec. 9. Local Union No. 1072 is a part of the International Brotherhood of Elec-
trical Workers and any violation or annulment of working rules or agreement of
any other Local Union of the I.B.E.W., or the sub-letting , assigning , or the transfer
of any work in connection with Electrical work to any person, firm , or corporation
not complying with the terms of this Agreement by the Employer, will be sufficient
cause for cancellation of this Agreement , after the facts have been determined by
the International Office of the Union.
ROCKY MOUNTAIN CHAPTER, NECA
LOCAL #68
ARTICLE 4.24
4.24 Second Party: Local Union 68 is a part of the International Brotherhood of
Electrical Workers and any violation or annulment of working rules or Agreements
of any other Local Union of the I.B.E.W.; or subletting , assigning , or transfer of
any work in connection with electrical work to any person, firm , or corporation
not recognizing the I . B.E.W. as the collective bargaining representative on any
electrical work in the jurisdiction of this or any other such Local Union by the
Employer, will be sufficient cause for cancellation of this Agreement , after the
facts have been determined by the International Office of the Union.
MISSOURI VALLEY LINE CONSTRUCTION CHAPTER, NECA
LOCAL # 426 (ALSO LOCALS ## 714, # 1250 and # 1426)
ARTICLE II, SECTION 13
Sec. 13. The Local Unions parties to this Agreement are a part of the Inter-
national Brotherhood of Electrical Workers and any violation or annulment of this
Agreement or any other agreement with any local union of the IBEW or the
subletting , assigning or the transfer of any work in connection with electrical work
to any person, firm or corporation not complying with the terms of this Agreement
by the Employer will be sufficient cause for cancellation of this Agreement after
the facts have been determined by the International Office of the Union.
THE SAN FRANCISCO ELECTRICAL CONTRACTORS ASSOCIATION, INC.
LOCAL # 6
ARTICLE II, SECTION 10
Sec. 10. Local Union No. 6 is a part of the International Brotherhood of Elec-
trical Workers and any violation or annulment of working rules or Agreement of
any other Local Union of the International Brotherhood of Electrical Workers, or
the sub-letting, assigning or the transfer of any work in connection with electrical
work to any person, firm, or corporation not complying with the terms of this
Agreement by the Employer, will be sufficient cause for cancellation of this Agree-
ment, after the facts have been determined by the Labor-Management Committee
and the International Office of the Union.
SAN DIEGO COUNTY CHAPTER, NECA
LOCAL # 569
ARTICLE II, SECTION 5
Section 5. CANCELLATION . Local Union 569 is a part of the International
Brotherhood of Electrical Workers and any violation of Agreement of any other
Local Union of the I.B.E.W. or the subletting of any work in connection with the
electrical work to any persons, firm or corporation not recognizing the I .B.E.W. as
the exclusive representative of his employees , or the employment of workmen not
in accordance with Article IV on any electrical work in the jurisdiction of this or
any other such Local Union, by the employer , will be sufficient cause for the cancel-
lation of this Agreement , after the facts have been determined by the International
Office of the Union.
SOUTHERN NEVADA CHAPTER, NECA
LOCAL #357
ARTICLE II, SECTION 16
Sec. 16. Local Union #357 is a part of the International Brotherhood of Elec-
trical Workers and any violation or annulment of working agreement of any other
Local Union of the I.B.E.W., or the subletting to any person, firm or corporation
ETS-HOKIN CORPORATION, ETC. 869
not recognizing the LB E.W. as the exclusive bargaining representative of his em-
ployees, will be sufficient cause for cancellation of this agreement after the facts
have been determined by the International Office of the Union.
LOS ANGELES CHAPTER, NECA (INSIDE WIREMEN'S AGREEMENT)
LOCAL #11
ARTICLE III, SECTION 13 (a)
Cause for Cancellation
Sec. 13 (a). Local Union No. 11 is a part of the International Brotherhood of
Electrical Workers and any violation or annulment of working rules or agreement
of any other local union of the LB E.W.; or the sub-letting, assigning, or the transfer
of any work in connection with electrical work to any person, firm or corporation
not complying with the terms of this agreement; or the employment of workmen in
any manner other than provided in Article II Section 3 will be sufficient cause for
cancellation of this agreement, after the facts have been determined by an Inter-
national Office of the Union.
Note: Article II, Section 3 is Union Security Clause.
SANTA BARBARA DIVISION, SANTA CLARA-SAN BENITO CHAPTER,
NECA LOCAL #413
ARTICLE II, SECTION 19
Section 19. Local Union No. 413 is a part of the International Brotherhood
of Electrical Workers and any violation or annulment of working rules or agree-
ments of any other Local Union of the I.B.E.W, or the subletting, assigning or
transfer of any work in connection with electrical work to any person, firm or cor-
poration not recognizing the I B.E.W. as the exclusive bargaining agency, will be
sufficient cause for the cancellation of this Agreement after the facts have been
determined by the International Office of the Union.
RIVERSIDE CALIFORNIA DIVISION, LOS ANGELES CHAPTER, NECA
LOCAL # 440
ARTICLE II, SECTION 5
Sec. 5. ---------- Local Union No. 440 is a part of the International Brother-
hood of Electrical Workers and any violation or annulment of working rules or
agreement of any other Local Union of the IBEW , or the sub -letting, assigning, or the
transfer of any work in connection with electrical work to any person, firm or cor-
poration not complying with the terms of this agreement on any electrical work
in the jurisdiction of this or any other such Local Union by the Employer, will be
sufficient cause for cancellation of this agreement , after the facts have been deter-
mined by the International Office of the Union.
SAN BERNARDINO DIVISION, LOS ANGELES CHAPTER, NECA
LOCAL #477
ARTICLE II, SECTION 15
Section 15. Local Union No. 477 is a part of the International Brotherhood of
Electrical Workers and any violation or annulment of working rules or agreement
of any other local union of the I.B.E.W.; or the subletting, assigning or the transfer
of any work in connection with electrical work to any person, firm or corporation
not recognizing the I.B.E.W. as the exclusive bargaining representative of his em-
ployees, on any electrical work in the jurisdiction of this or any other such local
union by the employer, will be sufficient cause for cancellation of this agreement,
after the facts have been determined by the International Office of the Union.
ARIZONA CHAPTER, TUCSON DIVISION, NECA
LOCAL #570
ARTICLE II, SECTION 8
Section 8 . Local Union No. 570 is a part of the International Brotherhood of
Electrical Workers. Any violation or annulment of working rules or agreement
of any other local of the IBEW or the subletting , assigning or the transfer by the
employer of any electrical work, to any person, firm or corporation not complying
with the terms of this agreement will be sufficient cause for cancellation of this
agreement with that employer, after the facts have been determined by the Interna-
tional Office of the Union.
CENTRAL NEW MEXICO CHAPTER, NECA
LOCAL # 611
ARTICLE II, SECTION 9
Sec. 9. Local Union 611 is a part of the International Brotherhood of Electrical
Workers and any violation or annulment of working rules or agreement of any
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other Local Union of the IBEW or the subletting , assigning , or the transfer of any
work in connection with the electrical work the terms of this Agreement by the
Employer will be sufficient cause for cancellation of this Agreement after the facts
have been determined by the International Office of the Union.
Los Angeles Building and Construction Trades Council ; Laborers
and Hod Carriers , Local No. 1082, AFL-CIO ; Carpenters Local
Union No . 1507, AFL-CIO ; District Council of Painters No. 36,
AFL-CIO ; and Cement Masons Union Local No. 627, AFL-
CIO [Elmer E. Willhoite] and Jones and Jones , Inc. Case No.
31-CC-9 (formerly f1-CC-732). August 31, 1965
DECISION AND ORDER
On October 30, 1961, Trial Examiner Herman Marx issued his
Decision in the above-entitled proceeding, finding that the above-
named Respondents had engaged in certain unfair labor practices
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents filed exceptions
to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifi-
cations noted below.
We agree with the Trial Examiner, for the reasons stated in Los
Angeles Building & Construction Trades Council, et al. [Portofino
Marina] (Jones and Jones, Inc.),' that the picket line clause in
article IX of the proposed contract which provides that no employee
need cross any authorized or approved picket line is violative of
Section 8 (e) because the clause "can be read as applying to unlawful
secondary picketing." In further agreement with the Trial Exam-
iner, but for the reasons set forth in Muskegon Bricklayers Union
#5, Bricklayers (Greater Muskegon General Contractors Associa-
tion),2 we find the provision of article IX which insulates employees
1150 NLRB 1590.
2152 NLRB 360, Member Fanning dissenting.
154 NLRB No. 55.